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Scottish Court of Session Decisions >>
John Hall v Bessy Corbet. [1698] Mor 12775 (14 December 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Mor3012775-009.html Cite as:
[1698] Mor 12775
Servitude, oneris ferendi, prevents an heritor of an inferior tenement from breaking his wall, so as to endanger that of the superior.
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John Hall, chirurgeon in Glasgow, being heritor of a shop there, and the tenement immediately above it belonging to Bessy Corbet, relict of Robert Saunders, printer, he, for his accommodation, strikes out a chimney in the wall; and when he comes to her tenement, he was to break a hole through the wall of the gavel and carry it up without. She applies to the Dean of Guild, and procures a stop till visitation; who, after inspection with his council, found the same could not be done without her consent. Of this decreet he raises reduction upon iniquity, that nuntiatione novi operis he could not be hindered to stop his own wall beneath the flooring and joists of the defender's story, seeing cuique licet quidlibet facere in suo dummodo in alienum nihil immittat, and she has no prejudice. Answered, That his inferior tenement was liable in the servitude oneris ferendi, or support to her superior tenements, and if this stopping were allowed, the wall might be so weakened as may occasion at some time or other its falling, besides the deformity of carrying up a lum at the back of her wall, and that it would fill her house with smoke immissione fumi in fenestras. The Lords thought the Dean of Guild had not given a good reason of his sentence, that he could not stop the wall without her consent; for, unless prejudice be instructed, he may do in his own what he pleases; yet he is the most competent Judge to neighbourhoods, and there was apparent hazard in this case by weakening the wall; and therefore sustained his decreet, and repelled the reason of reduction, and found he could not strike out a chimney in that wall.
